Madras High Court
Dharmenthiran vs State Rep. By on 1 October, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2024:MHC:3509
CRL OP(MD). No. 1063 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.09.2024
Delivered on : 01.10.2024
CORAM
The Hon`ble Mr Justice D.BHARATHA CHAKRAVARTHY
CRL OP(MD). No.1063 of 2021
and
Crl.M.P.(MD)No.7924 of 2021
1.Dharmenthiran
2.Pramoth Kumar
3.Revathi
4.Gowsalya
5.Priyanka
6.Durai ... Petitioners
Vs.
1.State rep. By
The Inspector of Police,
Elayangudi Police Station,
Sivagangai District
(In Crime No.275/2018)
2.Gangadevi ... Respondents
1/26
https://www.mhc.tn.gov.in/judis
CRL OP(MD). No. 1063 of 2021
PRAYER :- This Petition is filed under Section 482 Cr.P.C, to call for
the records pertaining to the charge sheet in P.R.C.No.09 of 2020 on the
file of the Judicial Magistrate, Ilayangudi and quash the same.
For Petitioners : Mr.V.Kathirvelu, Senior Advocate
for Mr.K.Navaneetharaja
For Respondents : Mr.R.M.Anbunithi
Additional Public Proseuctorfor R1
: Mr.N.Karthik Kanna for R2
ORDER
A. The Petition:
This Petition is filed to call for the records pertaining to the final report filed in P.R.C.No.9 of 2020 on the file of the learned Judicial Magistrate, Ilayankudi and quash the same and pass further orders.
B. The Arguments:
2. Heard Mr V. Kathirvelu, learned Senior Counsel appearing on behalf of the petitioners, Mr R.M. Anbunithi, learned Additional Public Prosecutor appearing on behalf of the first respondent and Mr Karthick Kanna, learned counsel appearing on behalf of the second 2/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 respondent/defacto complainant.
2.1 Mr V.Kathirvelu, learned Senior Counsel appearing on behalf of the petitioners would submit that the father of the petitioners 1 to 5 was murdered in the transaction and only to save their skin, as a counterblast, the defacto complainant has given the present complaint. The defacto complainant and the family of the defacto complainant did not even sustain any grievous injury in the transaction. They were the aggressors and there was not even any attack by the petitioners, who were all members of the same family. The final report is filed without properly investigating the false countercase. One of the petitioners has completed Law and is awaiting enrolment for no fault him since the present final report has been filed. The other case, in which, the defacto complainant and her family members are the accused is also pending before the same learned Judicial Magistrate, Ilayangudi. The learned Senior Counsel would place reliance upon the Full Bench judgment of this Court in T.Balaji V. State rep. By the Inspector of Police, New Washermenpet Police Station, 2024-4- LW-534. He would submit that absolutely, no effort whatsoever has 3/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 been taken by the investigating officer to find out the truth and therefore, this Court has to interfere.
2.2. Mr. R.M.Anbunithi, learned Additional Public Prosecutor, would submit that the investigation is duly carried on and the final report has been filed in accordance with law. When the same is pending committal, the quash petition cannot be entertained by this Court and no ground is made out for interference by this Court.
2.3. Mr. Karthick Kanna, learned counsel appearing on behalf of the second respondent would submit that even in the Full Bench judgment of this Court, the Hon'ble Full Bench has differentiated the cases arising out of the same transaction into Type - I and Type -II and this case falls under Type-II and 3 category mentioned in tType -II, that rd is both parties have exceeded the bounds of law and committed offence against each other. According to him, it can be seen that there was no aggressor or defender in the instant case. Therefore, finding truth in the allegations of both cases, final reports have been filed in both cases as per the dictum laid down by the Hon'ble Full Bench. All further 4/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 contentions can be gone into during the trial alone. The quash application is filed on factual contentions and no ground is made out for entertaining the quash application hence the same should be dismissed. C. The Factual Back ground:
3. The factual premises unfurl like a typical Tamil movie plot. The grandfather of the petitioners' herein had two wives. The deceased Kannusamy was the son born through the first wife. Pappa is his half- sister born through the second wife. They were residing in the opposite house. Pappa is married to one Karuppiah. Karuppiah’s cousin sister Revathy is the wife of Kannusamy. There were long-standing property and other disputes. Amidst this, the son of Pappa, namely, Jegatheesan got married to Kowsalya his maternal uncle Kannusamy’s daughter. They are living in the nearby town of Paramakudi. However, when both of them come to the native village, the husband and wife will go to their respective houses and will not come to the opposite houses and take positions in tune with their respective families.
3.1. While so, 06.11.2018 was the Diwali day. Close relatives of 5/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 both families assembled in their respective houses. At about, 06.00 to 07.00 pm., in the evening, it can be seen that there arose a quarrel leading to a physical attack by the members of rival families at each other. Kannusamy was said to have been pushed down and kicked on the chest, on account of which, he vomited blood. He was taken to the Hospital, where he was reported dead. Some of the members of the Pappa’s family got injured. They also went to the hospital and got treatment as outpatients. It can be further seen that the deceased Kannusamy himself was a retired Sub Inspector of Police and there are police personnel in the other family also.
D. The Case – I:
4. In this background, on 07.11.2018, at about 17.00 hours the second petitioner herein, namely, K Promoth Kumar, who is the son of the deceased Kannusamy, went to Ilayangudi Police Station and lodged a complaint. According to him, he has come to the village for the Diwali holidays and his maternal uncle and his family are living opposite house.
His maternal uncle's son, viz., Jegatheesan and his sister Kowsalya married each other on 12.12.2010 and ever since Jegatheesan and his 6/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 mother - Pappa have been asking for dowry and creating problems. They were often compromising the issue and were making his sister to live together. When his father retired from service, again, they created problems, by asking for money from his retiral benefits. He refused and he spent the money for other sister Priyanka’s marriage.
4.1. While so, on 06.11.2018, in the morning, Pappa, who is living in the opposite house started a quarrel by questioning and calling his father Kannusamy by names that he did not even give any single penny from the retiral benefits. In the morning itself, she said that her son Ramesh had a lot of money and he had ordered to kill all of the petitioner’s family and only for that her relatives had assembled on that day. At about 06.30 pm, to light the lamp in one of the buildings belonging to the petitioner's family, his father went out of the house. Immediately, thereupon, he was heard screaming to save him. When the defacto complainant came out, Pappa's son – Jegatheesan had pulled down his father and was kicking in the chest by uttering the words 'nrj;Jg; Nghlh'.
4.2. With him, the brother of the said Pappa – Duraisingam and 7/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 another brother's son- Kanibalan Vinoth, were also attacking his father. At that time, Pappa's younger brother's wife Selvi, Pappa's daughters Gangadevi, Kalpana, and daughter-in-law -Varsha were shouting by uttering unparliamentary words, insisting that his father be killed on the spot. Shocked by this, the petitioners Promoth Kumar and his brother- Dharmendran and his mother went to rescue their father. Upon seeing his mother, the said Pappa, Selvi, Varsha, Gangadevi, and Kalpana, pulled her hair and attacked her. The petitioner's brother was attacked with a spade, aiming his head and the petitioner was strangulated by Pappa's son-in-law- Ravichandran. By overcoming all of them, the petitioners and family members brought his father inside their house . His father vomited blood. He called 108 Ambulance. The Ambulance did not come immediately. They tried to take his father to the hospital by motorbike. Even at that time, the other family members prevented them, uttering that the petitioners’ father should die there. Despite this, they managed to take the petitioners’ father to Paramakudi Government Hospital. The Doctor examined their father and said that he was already dead. Therefore, he is praying for action against all the accused. 8/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 4.3. On the said complaint, a case in Crime No.274 of 2018 was registered for the alleged offences under Sections 147, 148, 294(b), 323, 324 and 302 I.P.C.
E. The Case – II :
5. On the same day, at about 06.00 am itself on behalf of the opposite side, Gangadevi, wife of Kaleeswaran, came to the police station and lodged a complaint. As per her version, she is residing with her family in Tiruppur. On 06.11.2018, she came for Diwali to her father's house along with her husband-Kaleeswaran. Her husband and son left for Tiruppur in the morning at about 06.15 pm. Kannusamy's grandchildren burst crackers in front of their house. Her mother – Pappa objected to that and admonished them to burst the cracker a little farther away.
5.1. For that, Kannusamy came to her mother and questioned how she could shout his grandchildren and a wordy quarrel ensued.
Kannusamy scolded her mother in filthy language hit her with his hands 9/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 and pushed her down. When Gangadevi tried to intervene and separate them, Kannusamy hit her with her hands and pushed her also. Then, Duraisingam came from behind the house and separated them. Kannusamy's sons Dharmendran, Pramothkumar, Kannusamy's wife Revathy, Kannusamy's daughters, Kowsalya, Priyanka, Priyanka's husband-Durai came there and by calling them in unparliamentary language and by questioning how dare that my mother can say that the children could not burst crackers, Dharmendran took a spade (kz;ntl;b) and by uttering the words ‘to die’ attempted to hit her uncle. She pulled her uncle, but, for the same, her uncle Duraisingam would have got hit on the left side of the head. Revathi, Kowsalya, Priyanka got hold of her hair and pushed her down and repeatedly kicked her with their legs. At that time, Pramothkumar and Durai hit her, her mother Pappa and her uncle Duraisingam with a stick on the left side of the head. Her mother suffered a bleeding injury and Duraisingam also got bleeding injuries on the head and nose. Thereafter, Duraisingam went to Ilayangudi Government Hospital for treatment in his two-wheeler. Thereafter, she called 108 Ambulance she and her mother Pappa also went to the hospital and were treated as outpatients and went home. 10/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 Therefore, she requested action against the persons, who abused them and hit them with hands, wooden sticks, iron rods and spade.
5.2. On the strength of the said complaint, a case in Crime No.275 of 2018 was registered by the very same Ilayangudi Police for the offences punishable under Sections 147, 148, 294(b), 323, 324 and 307 I.P.C and Section 4 of TNPHW Act.
F. The Investigation and Final Reports :
6. After registration of both cases, it can be seen that the investigating officer had examined the respective family members as the witnesses in the respective cases and the other witnesses completed the investigation and filed final reports in both cases. The first case with reference to the major offence under Section 302 I.P.C, is taken on file as P.R.C.No.9 of 2020 and the same is pending committal. In the said case, the following final report is filed:
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jq;fsJ iffshYk;> fhy;fshYk; fz;Zrhkpapd; clk;gpy; jhf;fpAk;> fPNo js;sp fz;Zrhkpapd; tapw;wpy; fhy;fshy; kpjpj;jjhy; fz;Zrhkpapd; fy;yPuypy; ghjpg;G Vw;gl;L ,wg;ig Vw;gLj;jpAk;> 5-tJ 6-tJ vjphpfs; rhl;rp 1 FLk;gj;jhh;fis mrpq;fkhf Ngrp> rhl;rp 1-d; mk;kh Nutjpia iffshy; jhf;fpa Fw;wk; Ghpe;Js;shh;fs;. vdNt> 1> 2> 4 vjphpfspd; nra;ifahdJ gphpT 147> 14/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 294(b)> 323> 324> 302-d; gbAk;> 3-tJ vjphpapd; nra;ifahdJ gphpT 147> 148 294(b)> 323 ,jr gbAk;jz;bf;fg;gl Ntz;batuhfpwhh;fs;. ,JNt ,Wjp mwpf;if.' 6.1. In the second case, in Crime No.275 of 2018, in which the major offence is under Section 307 I.P.C, the following final report is filed:
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rk;gt ,lkhd rhl;rp 1-d; tPl;L Kd;G te;J ,e;j Njtpbah kfs;fs; vd;d ,q;f ntb Nghl $lhJD nrhy;ywJD jpl;bf; nfhz;Nl> 1 tJ vjphp jh;Nke;jpud; mtq;f tPl;L mUfpy; fple;j kz;
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vdNt> 1-tJ vjphp gphpT 147> 148> 294(b)> 324> 307 kw;Wk; 4 of TNPHW Act gbAk;> 2 kw;Wk; 6 vjphpfs; gphpT 147> 148 294(b)> 324 ,jr gbAk;> 3> 4> 5 vjphpfs; gphpT 147> 294(b), 323 ,jr gbAk; jz;bf;fg;gljf;f Fw;wk; Ghpe;jth;fs; Mfpwhh;fs;.
Vjphpfs; midtUk; rl;ltpNuhjkhf nghJ Nehf;Fld; xd;W $b rhl;rp 1> rhl;rp 2 kw;Wk; rhl;rp 3 MfpNahh;fis jhf;fpa nra;ifahdJ ,jr gphpTfs; 147> 148> 294(b)> 323> 324> 307 IPC & 4 of TNPHW Act r/w 34 IPC gb jz;bf;fg;gljf;f Fw;wk; Ghpe;jth;fs; Mfpwhh;fs;.' G. The Discussion & Findings:
7. Thus, it can be seen that the findings of the investigating officer and the final report filed are nothing but the respective versions as maintained by both families. Both are contradictory and both cannot be true. Therefore, this case is squarely covered by the dictum of the Full 17/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 Bench of this Court in T.Balaji cited supra.
7.1. In the said case, the Full Bench of this Court, first considered what is the meaning of a case and counter case. In paragraph No.14, it is held that a case and counter case are rival versions of the same incident/transaction, one of which, must be necessarily false. The Full Bench terms this as the Type–I cases. This apart, in paragraph No.17, the Full Bench also enunciated a different category of ‘case and counter’ as Type - II cases, where the case and counter case are rival versions of the same incident/transaction in which both the parties have exceeded in bounds of law and have committed offence each other. After considering the necessity of unearthing truth and the binding nature of the Police Standing Orders issued, detailed guidelines in paragraph No.58 and the following are the directions which are given at the stage of completion of the investigation:
“B. For the Courts
(a) Pre-Cognizance stage :
i. While entertaining an application under Section 173(4) BNSS, 2023, the Magistrate shall ensure whether the complainant had approached 18/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 thesuperiopolice r officersassetouttherein.
ii. If the Magistrate is satisfied that the complainant had approached the superior police officer as set out in Section 173(4) BNSS 2023, he may proceed to take the application on file and deal with the same under Section 175(3) BNSS 2023.
iii. Where a final report is filed in one case and a closure report in the other case, the Magistrate will follow the procedure in Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537. Till a decision in the protest petition is arrived, the inquiry or the trial in the pending case where the final report has been filed shall be kept in abeyance.
iv. Where two final reports are filed in a case and counter case, , it is the duty of the Magistrate to scrutinize the final reports carefully. If it is found that the final reports put forward inconsistent rival versions of the same incident (ie., if one version is true the other must necessarily be false), or where it is found that the IO has filed two final reports mechanically without properly investigating and finding out the true aggressor the 19/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 Magistrateshallreturnthefinalreportsanddirect the IO to come up with a definitive case.
v. In rare cases, where such final reports are not screened out at the level of the Magistrate, and cognizance has been inadvertently taken, such orders may be challenged under Section 528 BNSS 2023 in which case the orders of cognizance may be set aside, depending upon the stage of the cases, with a consequential direction to follow PSO 566.
(b) Post Cognizance and Trial in a case and case in counter:
i. If the Magistrate finds that the two final reports are rival versions of the same incident, but both parties are found to have engaged in acts of aggression etc., he may take cognizance of both final reports. In such cases, the Magistrate shall follow the procedure prescribed in Ekambaram v. Sundaramurthy and State, 1988 LW (Cri) 127, which we have extracted in paragraph 56, supra.
ii. If one case is exclusively triable by a Court of Session and the other case is triable by a Magistrate, the Magistrate shall commit both the case and counter case to the Court of Session for trial as prescribed by Section 362 BNSS 2023 (Section 323 Cr.P.C), who shall thereafter proceed 20/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 in accordancewith the directionscontainedin paragraph 56 supra.” 7.2. Thus, applying the dictum of the Full Bench to the instance case, at the outset, it can be seen that the two versions as extracted above in detail are regarding one and the same transaction. They are rival versions in contradiction with each other and both cannot be true and certainly a case and counter. The investigating officer thus ought to have found the true and correct version which is the purpose of the investigation. On the other hand, the investigating officer had agreed with both versions and filed two final reports.
7.3. The investigating officer ought to have verified the truth and the veracity of the rival version. If she finds that one version is true and the other is false, she ought to have filed final reports pointing out the commission of the offence in one case and referring to the other case. If she has found that both the parties have committed excesses and hit each other and if one party is the aggressor and the other was a defender, then 21/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 offenses should have been charged only as against the aggressor. After a thorough investigation, if there is no aggressor and defender but both the parties are aggressors and attacked each other she can file a final report in both the cases, but, both the cases should not be inconsistent with each other and should be a compatible common version in the both the cases.
7.4. Thus, the investigating officer should first come out with one single version true version of the occurrence and then based on the same it was open for her to file a final report (a) stating that the pappa’s family was the aggressors and thus referring the complaint given by them and pointing out to the offence of murder or culpable homicide and other committed by them; (b) stating that Kannusamy’s family were only the aggressors and the death was by way of right to private defence and that the family members of Kannusamy alone are to be tried for the offences of Hurt and the other offences; or (c) that this is a quarrel which arose on account of the incident in which there is no real aggressor or defender but both sides exceeded the limits and committed offences of culpable homicide and hurt against each other.22/26
https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 7.5. A perusal of the final reports filed by the investigating officer, it can be seen that they contradict each other. In one case it is agreed that Pappa’s family had a motive and from the morning itself, they were in a murderous mood and attacked murdered Kannusamy. In the second case, it is agreed that merely because Pappa had admonished the grandchildren of Kannusamy he had attacked the said Pappa and thereafter the rest of his family members attacked the family members of Pappa and attempted to murder them. Thus, a thorough investigation was not conducted by the investigating officer to unearth the truth and one correct version is not at all unearthed by the investigating officer.
7.6. In that view of the matter, the final report filed in both cases are unsustainable. As per the dictum of the Full Bench of this Court, when such cases are brought to the notice of the Higher Forum at the early stage, the Higher Forum can set things right by ordering a fresh investigation. Therefore, though the prayer is made to quash one of the final reports alone, both the final reports are liable to be set aside and the matter is remanded back to the investigating officer to investigate afresh thoroughly and find out one common correct version and come out with a 23/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 definitive case.
8. The Result:
8. In view thereof, this Petition is disposed of on the following terms:
i) the final report in P.R.C.No.9 of 2020 on the file of the Judicial Magistrate, Elayangudi, arising out of Crime No.275 of 2018 and the final report in P.R.C.No. 5 of 2020, on the file of the Judicial Magistrate, Elayangudi, arising out of Crime No.274 of 2018, are set aside;
(ii) the first respondent, viz., the Inspector of Police, Elayangudi Police Station, Sivagangai District, is requested to take up the matter for fresh investigation thoroughly and the investigating officer shall come to a definitive common truth and lay final reports accordingly in compliance of the dictum of the full bench judgment in T. Balaji (cited supra);
(iii) the said exercise shall be completed within a period of three months from the date of receipt of copy of this order. Consequently, 24/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 connected Miscellaneous Petition is closed.
01.10.2024 Internet : Yes Index : Yes NCC : Yes LS TO
1. The Judicial Magistrate, Ilayangudi
2. The Inspector of Police, Elayangudi Police Station, Sivagangai District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
D.BHARATHA CHAKRAVARTHY,J LS 25/26 https://www.mhc.tn.gov.in/judis CRL OP(MD). No. 1063 of 2021 ORDER IN CRL OP(MD) No.1063 of 2021 Date : 01.10.2024 26/26 https://www.mhc.tn.gov.in/judis